AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1633
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.... of Haryana without payment of tax on the strength of registration certificate. Respondent No. 1 deposited the said amount on 27.04.2005. Aggrieved against order dated 29.03.2005 passed by the Assessing Authority, respondent No. 1 filed an appeal before the Joint Excise & Taxation Commissioner (Appeals), Rohtak, (for short, 'JETC'), which was dismissed vide order dated 29.11.2005 on the ground that respondent No. 1 was not entitled to exemption from payment of purchase tax. Respondent No. 1, being dissatisfied with order dated 29.11.2005 passed by JETC (Appeals), preferred an appeal before the Haryana Tax Tribunal, which was also dismissed vide order dated 20.02.2006, holding the same view as expressed by JETC (Appeals) in its order dated 29.11.2005 that the transactions in question did not fall under Section 5(3) or Section 3 of the Central Sales Tax Act, 1956 (for short, 'CST Act') and thus, could not be treated as inter-state sales calling for deduction under Section 27(1)(b)(A)(ii) of the HGST Act, as inter-state sales are deemed exports as defined under Section 3 of the CST Act covered by Section 3. Deemed exports cannot be viewed as inter-state sales. 3. Thereafter, aggrieve....
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.... refund amount from the date of deposit till the date of refund at the rate of 1% per month under Section 20(8) of the HVAT Act. Hence, the present appeal. SUBMISSIONS OF LEARNED COUNSEL FOR THE PARTIES Appellant-State 5. Learned counsel for the appellant inter alia contends that since the demand of Rs. 12,25,914/- was raised under the HGST Act and the refund was also allowed under the same Act, the interest on such refund must be payable in accordance with the provisions of Section 43(2) read with Rule 35(1)(b) of the HGST Act. She further contends that statutory provisions have to be applied in toto and not in a piecemeal manner i.e for demand and refund HGST Act and for interest HVAT Act. Furthermore, she contends that interest cannot be granted on the basis of equity under the tax enactment. 6. In support of her contentions, she relies upon the judgment passed by this Court in Khazan Chand Nathi Ram Vs. State of Haryana, 2004 (136) STC, 261, which was rendered at the time when there was transition from HGST Act, 1973 to HVAT Act, 2003, wherein this Court by referring to right to appeal observed that condition of pre-deposit for filing an appeal for the Assessment Year under....
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....by the State of Haryana against the said judgment dated 07.08.2015 was also dismissed vide order dated 10.09.2024. He, therefore, prays that the present appeal be allowed. 9. We have heard learned counsel for the parties and perused the file with their able assistance. 10. While admitting the present appeal, this Court vide order dated 20.05.2024 framed the following questions of law for consideration: - "(d) Whether the Hon'ble Haryana Tax Tribunal is justified in allowing the interest on the delayed payment from the date of deposit and not from the date of order in contravention of the provisions of Section 43 and Rule 35(1)(b) of HGST Act, 1973. (e) Whether the Hon'ble Haryana Tax Tribunal is justified in not appreciating the provisions of Section 43 of the HGST Act, 1973." 11. A perusal of the assessment order dated 29.03.2005 shows that it is passed under the HGST Act, 1973. Admittedly, the assessment order in the present case for the Assessment Year 1996-97 was passed on 29.03.2005, whereby, additional tax demand of Rs. 12,25,914/- was created. The said amount was deposited by the respondent on 27.04.2005. Respondent challenged the tax demand of Rs. 12,25,914 created v....
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....nterest for the entire period from the date of deposit of the amount by it till the date of refund thereof to it. In this regard, there is also clarification issued by the State Government vide order dated 03.07.2006 under Section 56(3) of the HVAT Act on the application of M/s Caparo Maruti Ltd., Bawal, holding that in view Section 20(8) of the HVAT Act, interest is payable from the date the assessee made payment till the date of refund to the assessee. So the question to be determined is as to whether the HGST Act and the HGST Rules are applicable or the HVAT Act is applicable? 6. Section 61 (1) of the HVAT Act is reproduced hereunder for ready reference:- "61. Repeal and Saving (1) The Haryana General Sales Tax Act, 1973 (20 of 1973), is hereby repealed: PROVIDED that such repeal shall not- (a) affect the previous operation of the Act so repealed or anything duly done or suffered thereunder; or (b) affect any right, title, privilege, obligation or liability acquired, accrued or incurred under the said Act; or (c) affect any act done or any action taken (including any appointment, notification, notice, order, rule, form, regulation, certificate) in the exercise of a....
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.... regulation, certificate) in the exercise of any power conferred by or under the said Act; and any such act done or any action taken in the exercise of the powers conferred by or under the said Act shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act were in force on the date on which such act was done or action taken; and all arrears of tax and other amount due at the commencement of this Act may be recovered as if the same had accrued under this Act. (2) Notwithstanding anything contained in sub-section (1), - (a) any application, appeal, revision or other proceedings made or preferred to any officer or authority under the said Act and pending at the commencement of this Act, shall, after such commencement, be transferred to and disposed of by the officer or authority who would have had jurisdiction to entertain such application, appeal, revision or other proceedings under this Act as if the said Act had been in force on the date on which such application, appeal, revision or other proceedings were made or preferred. Notwithstanding anything to the contrary contained in any judgment, decree or order of any co....
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....nd if it fails to do so, it shall be liable to pay to the State Government, in the prescribed manner the amount of tax in respect of which it has availed of exemption from payment after reducing therefrom the tax paid by it before such failure; (ii) an industrial unit availing the benefit of capital subsidy may, in the prescribed manner, change over to deferment of payment of tax for the remaining period and the remaining extent of benefit but where an industrial unit does not choose to do so, the benefit of capital subsidy to it shall cease to take effect on and from the appointed day; (iii) an industrial unit availing the benefit of deferment of payment of tax, whether by change over under the foregoing provisions or otherwise, may, in lieu of making payment of the deferred tax after five years, pay half of the amount of the deferred tax upfront along with the returns and on making payment in this manner, the tax due according to the returns shall be deemed to have been paid in full; and (iv) the tax deferred in every other case shall be converted into interest free loan in the manner prescribed. Explanation - For the purpose of this clause, "tax" includes the tax under t....
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....ct, which included orders as well, and Section 61 of the HVAT Act specifically reads/provides that any such act done or any action taken in exercise of powers conferred by or under the HGST Act shall be deemed to have been done or taken in exercise of power conferred by or under this Act (HVAT Act) as if this Act was in force on the date on which such Act was done or action taken, and all arrears of tax and other amount due at the commencement of this Act may be recovered as if the same had accrued under this Act. Meaning thereby that Section 61 (Repeal and Saving) secured the revenue so that it can be recovered as per procedure laid down under the HVAT Act. 18. Now coming to the judgment referred to by the learned counsel for the appellant as well as respondent No. 1. 19. Learned counsel for respondent No. 1 has relied upon judgment dated 07.08.2015 passed by Division Bench of this Court in CWP-16213-2014 titled as 'Haryana Vanaspati & General Mill Vs. The State of Haryana and another', which was subsequently upheld by Hon'ble the Supreme Court vide order dated 10.09.2024 passed in SLP(C) No.7574 of 2016, wherein the SLP(C) No.7574 of 2016 filed by the State of Haryana was dismi....
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....he appeal succeeds, the assessee is entitled to a refund of such an amount as may be directed by the Appellate Authority. Absent any statutory bar, there is no justification for denying a successful assessee interest upon the amount(s) to be refunded for the period during which the revenue had the benefit thereof. The revenue suffers no loss thereby for it has enjoyed the benefit of the money during this period. It has enjoyed the benefit of the money that it was never entitled to. 9. In equity, the petitioner's claim is established. The question is whether the claim is barred by any provision of law. We think not. The question also is whether interest is payable in law. It is, in view of the judgements of this Court, binding on us. We, therefore, need look no further while granting interest. 10 & 11 XXX XXX XXX 12. We are invited to exercise our extra-ordinary jurisdiction under Article 226 of the Constitution of India and not jurisdiction in any other proceeding such as in a Civil Suit or even in arbitration proceedings. The judgements of this Court in similar matters have upheld the right of assesses to interest in such circumstances. 13 & 14 XXX XXX XXX 15. XXX XXX XX....
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....t case we are not exercising extraordinary jurisdiction under Article 226 of the Constitution of India but are deciding the appeal. Therefore, judgment referred to by learned counsel for the respondent does not come to his aid. 24. In the judgment passed by this Court in Khazan Chand Nathi Ram's case (supra), as referred to by learned counsel for the appellant, this Court held that right of appeal is a substantive right that vests at the date of commencement of the lis and is governed by the law prevailing at that time. Section 39(5) of the HGST Act, requiring pre-deposit of tax, interest, and penalty, continues to apply even after the repeal of the Act, as the right is saved under Section 4 of the Punjab General Clauses Act, 1898. Further that lis under taxation laws commences on the date when returns are filed or required to be filed. Cause of action arises from failure to furnish returns or rejection of returns by the Assessing Authority. Pre-deposit condition under Section 39(5) HGST Act for filing appeals remains enforceable despite repeal, as the right to appeal is preserved by the General Clauses Act. Right of appeal under taxation laws is substantive and accrues at the com....
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....t in the case of Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 53 STC 315 to state that where any right or liability arises under a particular Act, the remedy available under that Act has to be availed of. Reference was also made to the decision of the Supreme Court in the case of Manphul Singh Sharma v. Smt. Ahmedi Begum (1994) 5 JT 49 (SC) to state that when a repeal is accompanied by a fresh legislation on the same subject, the provisions of the new Act will have to be looked into to determine whether and how far the new Act projects or keeps alive the old rights and liabilities. It has been stated that the provisions of Sub-section (2) of Section 61 of the HVAT Act envisages the procedure regarding entertainment of pending appeals, applications, revisions or other proceedings made or preferred to any authority under the old Act and pending at the commencement of the HVAT Act. It has been pointed out that since the order of assessment has been made before coming into operation of the HVAT Act, therefore, the right of appeal is to be exercised in terms of the HGST Act. Reliance was also placed upon Section 4 of the Punjab General Clauses Act, 1898 (as applicable to the ....
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.... Effect of repeal. - Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed." 29. Hon'ble the Supreme Court in State of Punjab Vs. Mohar Singh Pratap Singh, 1955(1) SCR 893 hel....
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....nly repeals the old law, but is substituted in place of the old law, section 6(e) of the General Clauses Act is not applicable, and we would have to fall back on the provisions of the new Act itself". These observations could not undoubtedly rank higher than mere 'obiter dictum' for they were not at all necessary for purposes of the case, though undoubtedly they are entitled to great respect. In agreement with this dictum of Sulaiman C.J., the High Court of Punjab, in its judgment in the present case, has observed that where there is a simple repeal and the Legislature has either not given its thought to the matter of prosecuting old offenders, or a provision dealing with that question has been inadvertently omitted, section 6 of the General Clauses Act will undoubtedly be attracted. But no such inadvertence can be presumed where there has been a fresh legislation on the subject and if the new Act does not deal with the matter, it may be presumed that the Legislature did not deem it fit to keep alive the liability incurred under the old Act. In our opinion the approach of the High Court to the question is not quite correct. Whenever there is a repeal of an enactment, the conseq....
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....s and keeps alive are rules, notifications or other official acts done in exercise of the powers conferred by or under the Ordinance and these powers are mentioned in several sections of the Act. But although the lodging of the claim does not come within the purview of section 11 of the Act, we are of opinion that the proviso to section 4 of the Act clearly shows that a claim filed under the Ordinance would be treated as one filed under the Act with all the consequences attached thereto. Section 4 of the Act provides for the registration of land claims. The first subsection lays down how the claim is to be filed. The proviso attached to it then says that "a refugee who has previously submitted a claim under Ordinance VII of 1948 to any other authority competent to register such claim shall not submit another claim in respect of the same land to the Registering Officer". Such claim would be reckoned and registered as a claim under the Act and once it is so treated the incidents and corollaries attached to the filing of a claim, as laid down in the Act, must necessarily follow. The truth or falsity of the claim has to be investigated in the usual way and if it is found that the, info....
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....ine of Rs.120 has not already been, paid, it shall be paid now. In default, the respondent shall suffer rigorous imprisonment for one month. Appeal allowed." 30. Hon'ble the Supreme Court in M/s Gammon India Ltd. Vs. Spl. Chief Secretary & Ors., 2006 (3) SCC 354 held as under:- "2. The principal question which falls for adjudication in these appeals is regarding the jurisdiction of the Assistant Commissioner of Commercial Taxes, Warangal Division, Andhra Pradesh in initiating and completing penalty proceedings under the Andhra Pradesh General Sales Tax Act, 1957 (for short A.P.G.S. Tax Act) after its repeal. 3 to 10. XXX XXX XXX 11. The appellant, aggrieved by the said order, also filed a writ petition which was heard by a Division Bench of the High Court. The Division Bench examined the question whether the Assistant Commissioner of Commercial Taxes was entitled to initiate and complete the penalty proceedings under the A.P.G.S. Tax Act subsequent to its repeal and introduction of the A.P.V.A. Tax Act with effect from 1.4.2005. The High Court while dismissing the writ petition held that the Assistant Commissioner was not prohibited from initiating and completing the said ....
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....he commencement of the repealing act; or (b) revive anything not in force or existing at the time at which the repeal takes effect; or (c) affect the previous operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed; or (d) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (e) affect any fine, penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (f) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, any such fine, penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed." 15. The Court observed that even in the absence of a provision similar to Section 80(3) of the A.P.V.A. Tax Act, Section 8 of the A.P.G.S. Tax Act, which is analogous to Section 6 of the General Clauses act, is not confined to mere repeal of a statute but extends to a repeal ....
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....st and closed) as if it had never existed. 26. In England, to obviate such result a practice was developed to insert a saving clause in the repealing statute with a view to preserve rights and liabilities already accrued or incurred under the repealed enactment. When it was found cumbersome to insert a saving clause in every statute, then in order to dispense with the necessity of having to insert a saving clause on each occasion, Section 38(2) was incorporated in the Interpretation Act of 1889. Section 6 of the Indian General Clauses Act is on the same lines as Section 38(2) of the Interpretation Act of 1889. Section 38(2) of the Interpretation Act, 1889 reads as under: Effect of repeal in future Acts. (1) xxx xxx xxx (2) Where this Act or any Act passed after the commencement of this Act repeals any other enactment, then, unless the contrary intention appears, the repeal shall not (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed; or (c) affect any right, privilege, obligation, or liability acqui....
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.... repeal by implication effectuated of the original act, and even though the "repeal" is declared by specific provision in the later enactment the courts will construe the unchanged provisions as being continuously in force. 32. In Commonwealth vs. Gross - 21 A.2d 238, 240, 145 Pa.Super. 92 it was observed that insofar as Workmen's Compensation Act of 1939 is a reenactment of Workmen's Compensation Act of 1937, it is "continuance" of such act, but insofar as act of 1939 is in conflict with act of 1937, it is a "repeal" of the act of 1937. 33. In State vs. Bemis 45 Neb. 724, 64 N.W. 348, the Court held that the rule seems to be settled in this state that the simultaneous repeal and reenactment of a statute in terms or in substance is a mere affirmance of the original act, and not a "repeal" in the strict or constitutional sense of the term. 34. The Court further held in this case that as a rule of construction the simultaneous repeal and reenactment of the same statute in terms or in substance is a mere affirmance of the original act, and not a repeal in the strict and constitutional sense of the term. Where the reenactment is in the words of the old statute, and was evidently ....
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....Section 38 of the English Interpretation Act, 1889. In order to discern and evaluate the strong similarity between the Indian and English Law on this subject, we deem it appropriate to set out Section 6 of the Indian General Clauses Act, 1897. "6. Effect of repeal.- Where this Act, or any Central Act or Regulation made after the commencement o this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of such right, privilege, obligation, penalty, forfeiture or punishment as aforesaid. and any such investigation, legal proceeding or remedy may be instituted, continued or en....
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....on of Land Claims) Act, 1948. The claim was investigated into and it was found to be false; it was held to be an offence under the Act. At the trial, on his confession, the respondent was convicted and sentenced to imprisonment. On suo motu revision, the District Magistrate found the sentence to be inadequate and referred the case to the High Court. The High Court found that since the ordinance was repealed, he could not be convicted under Section 7 of the Act. This Court, on appeal, reversed the decision and upheld the conviction applying Section 6 of the General Clauses Act. 46. The principle which has been laid down in this case is that whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purposes of determining whether they indicate a different intention. The line of enquiry would be, not whe....
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....n 6 was of general application and capable of being attracted to cases of implied repeals also. 49. In M.A. Tulloch's case (supra), the Court aptly observed that we have to inquire the principle on which the saving clause in Section 6 is based. It is manifest that every later enactment which supersedes an earlier one or pouts an end to an earlier state of the law is presumed to intend the continuance of rights accrued and liabilities incurred under the superseded enactment unless there were sufficient indications - express or implied - in the later enactment designed to completely obliterate the earlier state of the law. 50. The next question is whether the application of that principle could or ought to be limited to cases where a particular form of words is used to indicate that the earlier law has been repealed. The entire theory underlying implied repeals is that there is no need for the later enactment to state in express terms that an earlier enactment has been repealed by using any particular set of words or form of drawing but that if the legislative intent to supersede the earlier law is manifested by the enactment of provisions as to effect such supersession, then....
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.... legal proceeding can be instituted and continued in respect of any matter pending under the repealed Act as if that Act was in force at the time of repeal. In other words, whenever there is a repeal of an enactment the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears in the repealing statute. 53. In case the repeal is followed by fresh legislation on the same subject the court has to look to the provisions of the new Act for the purpose of determining whether they indicate a different intention. The question is not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. The application of this principle is not limited to cases where a particular form of words is used to indicate that the earlier law has been repealed. As this Court has said, it is both logical as well as in accordance with the principle, upon which the rule as to implied repeal rests, to attribute to that legislature which effects a repeal by necessary implication the same intention as that which would attend the case of an express repeal. Where an intent....
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....lete matters. 58. In Commissioner of Income Tax vs. Shah Sadiq and Sons AIR 1987 SC 1217, this Court observed that a right which had accrued and had become vested, continued to be capable of being enforced notwithstanding the repeal of the statute under which that right accrued unless the repealing statute took away such right expressly or by necessary implication. This is the effect of Section 6 of the General Clauses Act, 1897. 59. In M/s Gurcharan Singh Baldev Singh v. Yashwant Singh and Ors. (1992) 1 SCC 428, the Court observed that the objective of Section 6(c) of the General Clauses Act, 1897 is to ensure protection of any right or privilege acquired under the repealed Act. The only exception to it is legislative intention to the contrary. That is, the repealing Act may expressly provide or it may impliedly provide against continuance of such right, obligation or liability. 60 to 71 XXX XXX XXX 72. In the instant cases, there is a simultaneous repeal and the reenactment and the A.P.V.A. Tax Act clearly saves the earlier provisions in toto. Consequently, rights and liabilities accrued or incurred under the A.P.G.S. Tax Act shall continue even after it is repealed. 73....